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FCC needs to face reality over broadcast 'indecency'

For those who missed it last week, here is Fox's response to the FCC's latest demand for an indecency fine: "Fox will not be paying. … Fox believes that the FCC's decision in this case was arbitrary and capricious, inconsistent with precedent and patently unconstitutional."

It was pitch perfect: Offended, dismissive and superior; an attempt to steal the moral high ground from a government committee that's supposed to own that landscape.

Reading the network's flag-waving quote, one almost forgets that the fined images (from a short-lived 2003 reality show titled "Married by America") showed contestants cavorting with strippers wearing nothing but whipped-cream bikinis. Only Fox.

A broadcaster outright refusing to pay an FCC forfeiture order is an unusual move. In ABC's "NYPD Blue" case, the network paid about $1.2 million and appealed the FCC's decision. By contrast, Fox's stance says: "Just sue us."

With the statute of limitations on "Married" about to lapse, Fox says the FCC has until Monday to turn the matter over to the U.S. Department of Justice and take it to U.S. district court.

The commission should let this issue drop.

At a time when broadcasters face unprecedented financial challenges amid increasing competition from new media, the FCC's pursuit of fines for more than 5-year-old semi-naughty clips make broadcasters and their government watchdog seem downright archaic.

Any lurid video imaginable is freely available online. Cable and satellite providers offer programming ranging from G-rated to X. The FCC's complaints represent a throwback to the delivery universe of yesteryear, when government-monitored public airwaves were the only way Americans could receive video programming in their home.

The notion that the FCC still is somehow protecting civic virtue by attacking five broadcasters amid an increasingly interconnected digital-media landscape that's exploding with video content is downright nostalgic.

As for the Fox conflict, the FCC already took a knock on this issue when a report uncovered that the number of viewer complaints about the show wasn't 159, as the FCC claimed, but 90 — and they all came from 23 people.

The FCC has reduced the fine from $1.2 million to $91,000 (representing a $7,000 fine against 13 stations). Yet Fox still won't pay.

"That's like nothing," a source close to the Fox camp says. "This is about two things for the company: It's about the principle and about standing up for the First Amendment."

Well, those, and the fact Fox's fines will increase tenfold for future offenses.

Another unique aspect: The FCC's forfeiture order last month included objections to Fox showing a "Married" contestant about to "apparently … lick … whipped cream" off a dancer, and a dancer "apparently about to place (another character's) hand in his shorts" as well as a bachelorette "apparently about to kiss" a female performer.

Fox points out that — apparently — the FCC is haunted by material they only imagined happened in the episode.

Media Access Project president and CEO Andrew Schwartzman says the Fox case is the only time the FCC has tried to fine content that was suggested but wasn't actually shown.

"It's noteworthy that the FCC continues pushing the envelope," he says. "The centerpiece of Fox's argument is that the FCC is wildly inconsistent, and I agree."

Broadcast television's survival does not require increasing the amount of risque content. Armed with wholesome ratings titan "American Idol," Fox should know that better than anyone.

But broadcasters should not be subjected to inconsistent standards, sporadically enforced, that seal the networks in a morality bubble that drifts further from the evolving real-life community standards they were meant to reflect.